Man's nervousness no basis for search, Appeals Court rules

— A state trooper's suspicions of Robert Lieblong's nervous behavior during a 2005 traffic stop were not enough basis for a search of Lieblong's car, the state Court of Appeals ruled Wednesday.

Trooper Dale Donovan stopped Lieblong's vehicle on May 15, 2005, on Interstate 30 for speeding and wrote the 46-year-old Bryant man a warning ticket. The trooper ran a criminal background check, which revealed that Lieblong had been arrested on drug charges in the past, and the officer also noted that the man was acting nervously.

The opinion, written by Appeals Court Judge D.P. Marshall, stated that Donovan asked Lieblong to step away from the vehicle and asked for permission to search the vehicle. The trooper told Lieblong that he could call for a police dog to sniff the vehicle, which would take an additional 20 minutes, or Lieblong could give his consent for the officer to search the rented Pontiac Bonneville.

Lieblong consented, and Donovan discovered 75.9 grams (2.6 ounces) of methamphetamine inside the car, the opinion stated.

Marshall said in the ruling that despite Donovan's suspicions, the trooper did not have sufficient reason to search the vehicle.

Lieblong's attorney, David Cannon of Little Rock, said once the trooper wrote the warning ticket and gave Lieblong his license back, the traffic stop was over.

"But, after that, the trooper opened the door and said, 'Why don't you stand over there,'" Cannon said. "And then he threatened to call out a police dog to search the vehicle."

At an evidence suppression hearing, the trooper testified thatLieblong was free to leave once the warning ticket was written.

"He claimed that in his testimony, but when you watch the videotape of the actual traffic stop there is no mention of it," Cannon said. "He said in court that my client was free to leave, but his car was going to be seized."

"What are you supposed to do when the trooper seizes your vehicle and you're standing on the side of a busy highway?" the attorney asked.

Marshall's opinion said the state "argues that Donovan had reasonable suspicion to detain Lieblong after the traffic stop because Lieblong was nervous, had a criminal history involving drugs, and made a suspicious statement that he was still trying to straighten his life out."

"We disagree," the appeals court said.

Marshall cited court precedent in ruling that nervousness and prior drug arrests weren't enough to create reasonable suspicion.

Lieblong's statement that he was trying to straighten his life out was ambiguous and "could have been merely a nervous attempt at conversation,'" the tribunal said.

After Pulaski County Circuit Judge Chris Piazza allowed the drug evidence into the case, Lieblong entered a conditional guilty plea and was sentenced to two years in state prison. The conditional plea allowed him to challenge the search in the court of appeals.

During the appeal, Lieblong served a portion of his sentence and was released on parole.

Cannon said he hopes that charges won't be refiled.

"We will go back and the state can either dismiss the charges, or they can go to trial with no drugs or no evidence," Cannon said.

Arkansas, Pages 12 on 10/04/2007